LuxembourgLoi du 21 avril 1989 relative à la responsabilité civile du fait des produits défectueux, Liability for Defective Products (Directive 85/374/EEC)
Loi du 21 avril 1989 relative à la responsabilité civile du fait des produits défectueux
In force since .
A product liability rule binding public and private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- The Act applies to a movable good, including one built into another movable or an immovable, and to electricity; whether it reaches software supplied on its own or as a service is not settled (Art. 2, point 1).
- If you manufacture a finished product, a raw material or a component, or present yourself as the producer by putting your name, trade mark or another distinguishing mark on the product, you answer for the damage a defect in it causes (Arts. 1 and 2, point 2).
- If you import a product into the Community for sale, hire, leasing or another form of distribution in the course of your business, you answer as the producer (Art. 2, point 2).
- If the producer cannot be identified and you supply the product, tell the victim within a reasonable time who the producer or your own supplier is, or you answer as the producer (Art. 2, point 2).
- Offer the safety a person can legitimately expect, judged on all circumstances including the presentation of the product, the use that can reasonably be expected and the time it was put into circulation (Art. 2, point 3).
- Be able to prove, if you rely on a defense, that you did not put the product into circulation, that the defect did not exist when you put it into circulation or arose afterwards, that the product was not made for sale or distribution with an economic purpose or in the course of your professional activity, or that the defect is due to compliance with mandatory rules of the public authorities (Art. 4(a) to (d)).
- If you make a component, be able to prove that the defect is attributable to the design of the product it was incorporated into or to the instructions of that product's manufacturer (Art. 4(e)).
- Do not rely on a limiting or exonerating clause against the victim, because it cannot limit or exclude your liability (Art. 5).
- Answer jointly and severally with every other person liable for the same damage (Art. 6).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Does the term movable good (bien mobilier) in Article 2, point 1 of the Act reach software supplied on its own, or software supplied as a service?
What this law does
The Loi du 21 avril 1989 relative à la responsabilité civile du fait des produits défectueux transposes Directive 85/374/EEC, according to the Legilux record of the Act. Article 1 makes the producer liable for the damage caused by a defect in its product. Article 2, point 1 defines a product as any movable good, even one incorporated into another movable or into an immovable, and the term also covers electricity.
Article 2, point 2 treats as producer the manufacturer of a finished product, the producer of a raw material, the manufacturer of a component and anyone who presents itself as producer by putting its name, trade mark or another distinguishing mark on the product. Article 2, point 2 also treats as producer a person who imports a product into the European Economic Community for sale, hire, leasing or another form of distribution in the course of its business.
Article 2, point 2 treats each supplier as the producer where the producer cannot be identified, unless the supplier names the producer or its own supplier to the victim within a reasonable time. Article 2, point 2 applies the same rule to a product imported from a State outside the Community that does not name its importer, even if the producer is named.
Article 2, point 3 defines a defect as the failure of a product to offer the safety that one can legitimately expect, taking all circumstances into account. Article 2, point 4 excludes damage to the defective product itself from the damage the Act covers. In the text published in Mémorial A n° 25 of 1989, Article 2, point 4 repairs damage to things only after deduction of an amount of 500 Ecus, converted into Luxembourg francs at the rate on the day the damage occurred.
The Law of on civil liability for nuclear accident damage replaced Article 2, point 4, letter a, so that the exclusion of nuclear accident damage refers to that Law. Article 3 puts on the victim the burden of proving the damage, the defect and the causal link between them. Article 4(a) frees the producer who proves that it had not put the product into circulation.
Article 4(b) frees the producer who proves that the defect did not yet exist when it put the product into circulation or arose afterwards. Article 4(c) frees the producer who proves that the product was neither made for sale or another form of distribution with an economic purpose nor made or distributed in the course of its professional activity. Article 4(d) frees the producer who proves that the defect is due to the product complying with mandatory rules issued by the public authorities.
Article 4(e) frees the manufacturer of a component who proves that the defect is attributable to the design of the product into which the component was incorporated or to the instructions of the manufacturer of that product. Article 5 limits the producer to liability for the extent to which the defect contributed to the damage where the fault of the victim, or of a person for whom the victim is responsible, also caused it.
Article 5 does not let the producer escape liability by proving that the damage was caused jointly by a defect and by the intervention of a third party. Article 5 bars limiting or excluding the producer's liability toward the victim by a limiting or exonerating clause. Article 6 makes several persons liable for the same damage jointly and severally.
Article 7 sets a limitation period of three years from the day the victim knew or should have known of the damage, the defect and the identity of the producer. Article 7 also extinguishes the victim's right to compensation ten years after the producer put the defective product into circulation, unless the victim started court proceedings against the producer within that period.
Article 8 leaves untouched the victim's rights under the general law of contractual or non-contractual liability or under another special liability regime. Article 10 excludes products put into circulation before the Act entered into force. The Act entered into force on .
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.